Natural Born Citizens — Chapter 9: Allegiance

Allegiance to a country

The founding fathers would have been concerned with allegiance to the newly formed United States of America and their newly formed government. Obviously, having defeated the British in the Revolutionary War securing their independence and sovereignty in their budding Nation, it was critical to the founders to have loyal patriots running the government. It cannot be debated that the founders held the occupant to the Office of the President to a higher standard than any other office in the Federal Government by requiring a natural born citizen to be the office holder making no other position within the Federal Government held to the same standard of citizenship (with the exception that the Vice-President must also be held to this standard should he or she become President). But why did the founding fathers require natural born citizenship for the President and no other office? Clearly, as John Jay wrote in his letter to George Washington:

Permit me to hint, whether it would not be wise and seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government and to declare expressly that the Command in Chief of the American army shall not be given to, nor devolve on, any but a natural born Citizen…[i]

John Jay referred in his letter to “Command in Chief” as we understand today to be the Commander in Chief. The U.S. President is the Commander in Chief of the armed forces. To this point in the book, we have not been able to discern with certainty what John Jay meant by natural born citizen, so let us see if we can understand what was meant by Foreigner(s). Returning to our dictionary.com site, foreigner is defined as:

a person not native to or naturalized in the country or jurisdiction under consideration; alien.[ii]

Clearly under this definition, this is our first indication that maybe dual citizenship does not preclude one from being a natural born citizen. Utilizing this definition for foreigner, it is clear that Barack Obama would not be considered an alien of the United States. Being born in Hawaii and although having dual citizenship, he did possess U.S. citizenship through his Mother, so it would certainly appear that he would not be considered a foreigner or an alien. Was this enough for him to satisfy what was meant by John Jay’s qualification of natural born citizenship status for the Presidency?

After the U.S. Constitution was written and signed by our founding fathers, it had to be ratified by the States in order to become the Supreme Law of the land. In an effort to get the people of New York State to support the ratification of the Constitution, the Federalist Papers were written and published in New York City newspapers to persuade the people. As the FoundingFathers.info website explains:

In total, the Federalist Papers consist of 85 essays outlining how this new government would operate and why this type of government was the best choice for the United States of America. All of the essays were signed “PUBLIUS” and the actual authors of some are under dispute, but the general consensus is that Alexander Hamilton wrote 52, James Madison wrote 28, and John Jay contributed the remaining five.

The Federalist Papers remain today as an excellent reference for anyone who wants to understand the U.S. Constitution.[iii]

In my searches of the Federalist Papers, I find no discussion of the natural born citizen clause from Article II, Section 1. Why? If said provision and requirement is so critical to the Office, why is no further mention of it made in “selling” the Constitution to the people? It may be as simple as the fact that the Federalist Papers sought to focus their essays on the contentious portions of the Constitution and opposition in general to a federal government rather than spend time on those areas without dispute. Further, the role and responsibilities of the President as Commander in Chief were discussed in detail in the Federalist Papers even though no mention of the natural born citizen provision was made. In the final analysis, it may simply be that the term natural born citizen was firmly rooted in the minds of the founders either through de Vattel’s definition or another definition they commonly knew, so the founders never questioned in their minds what was meant. Was there any other evidence as to why the founders included this provision especially with respect to using the term natural?

The founding fathers were learned men. They had read and were versed in many subjects and literate in the writings and teachings of the political thinkers that came before them. One such political thinker whom the founding fathers were profoundly familiar was Cicero. In reading Cicero’s works on natural law, the founders concluded that:

The Law of Nature or Nature’s God is eternal in its basic goodness; it is universal in its application. It is a code of “right reason” from the Creator himself. It cannot be altered. It cannot be repealed. It cannot be abandoned by legislators or the people themselves, even though they may pretend to do so. In Natural Law we are dealing with factors of absolute reality. It is basic in its principles, comprehensible to the human mind, and totally correct and morally right in its general operation.[iv]

They created the Supreme Law of Land when they wrote the Constitution based on this idea of natural law. Emmerich de Vattel’s The Law of Nations is a treatise on natural law as indicated by the full title of his treatise: The Law of Nations or Principles of Natural Law.[v]

If we study this idea of natural law in relation to birth, we have to conclude that God given birth rights has something to say on the subject, therefore, the parents citizenship must play a part in the birth rights of the child, and arguably must play at minimum an equal role to the place of birth of the child. It is reasonable to conclude that this may be the very reason that de Vattel defined natural born citizen in the manner in which he did: on the soil of the country to citizen parents of the country.

At this point, however, there is a very interesting issue that arises in our modern day society. We can accept all of the above and yet find in modern times that to be in accordance with natural law that it now may only take one citizen parent and not two to be a natural born citizen. Why do I make this claim? I make the claim for these reasons. Many scholars have argued that the citizenship of a child follows the citizenship of the father, but as Leo Donofrio pointed out the other day on his blog, earlier in our history a Mother’s citizenship could result from “derivative citizenship” meaning at the time a woman married she took on the citizenship of her husband. In modern times, this is no longer true. Automatic citizenship upon marriage is not the United States law today. Therefore, we must now make a distinction between parents and give weight to one over the other which of course we do in practical applications of the law justly or unjustly where the rights of the Mother typically garners more weight. Could it be said that even though the founding fathers were using de Vattel’s definition of natural born citizenship when they wrote natural born citizen into the Constitution that the definition is not the same today even if you ascribe to original intent Constitutional doctrine? I think the answer is probably no, let me explain.

We know that the founding fathers followed natural law in their political concepts of government. Why is only one citizen parent under natural law, birth rights and natural born citizenship incompatible? I would argue it is for this reason, allegiance. As we discussed, in modern America, we no longer have the transfer of citizenship by marriage or “derivative citizenship” by marriage. In the case of a foreigner marrying a U.S. citizen, the foreigner remains a foreigner with whatever citizenship status they possess at the time that they marry. Their path to U.S. citizenship is altered in only that they have to wait a few less years to apply for U.S. citizenship and naturalization. And it is this naturalization that is important to our discussion here not in the traditional sense but in what it can tell us about dual citizens that wouldn’t be naturalized.

The term naturalization in essence means to make natural what is not now natural. In the case of citizenship, it is to make that persons’ new citizenship natural to him or her. In other words, his or her citizenship is naturalized so that his or her citizenship can be in accordance with the laws of nature. One of the processes of naturalization in the United States is to take a “Naturalization Oath of Allegiance.” The oath is as follows:

I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty, of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the armed forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely without any mental reservation or purpose of evasion; so help me God.[vi]

Now we know that no natural born citizen need take an oath of allegiance. However, what does it mean if we allow the definition of a natural born citizen to not include the citizenship of both parents, and if one of those parents is not a U.S. citizen thereby conferring that citizenship to the child? How is it that the child does not by the laws of nature possess some allegiance to that foreign sovereign regardless if they are conscious of it or not? This is the trouble that I have with using a definition apart from de Vattel’s because we can’t unequivocally say that the person does not possess at least a birth right allegiance to another nation. Having a birth right allegiance to another nation can present unintended future consequences and certainly cannot guarantee sole and unencumbered allegiance to the United States of America.

In the next chapter of the book, I would like to summarize both the irrefutable facts and the opinions that cannot be known with certainty to layout what we have learned throughout our discourse thus far. After summarizing what we’ve learned, we will move on to the next part of the book that will look at the reasons we have reached this crisis within our Constitution and how this crisis could have been avoided.

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12 Responses

I posted this in another chapter too, but I think it is appropriate to add this comment here too for people not reading all the chapter threads.

At the time of the Constitution, if the father was a citizen, then the spouse automatically became a citizen when she married the man. That was citizenship by derivation. That was also understood under the laws of nations at that time which were based on the laws of nature, or “natural law”. Thus except for the Jewish religious laws in general the citizenship of the father was key as to citizenship of the community and that was emphasized in Vattel’s writings. For Vattel knew that if the father was a citizen that upon marriage the wife instantly became naturalized as a citizen of the husband’s country by that marriage. Thus when Vattel wrote that the child follows the condition of the father, he understood that the law of nations and nature understood that the spouse of the father would automatically be a citizen of the country when the man married to the woman.

To achieve the intent of the natural born citizenship term of art codified in Vattel’s 1758 legal treatise, which is a child born with singular allegiance to one and only one country and have undivided loyalty and allegiance at birth, the only way that can be achieved is for the child to be born in the country to two citizens of the country, which is why Vattel defined natural born citizenship that way. And the founders and framers read Vattel. Franklin received three copies in 1775 of the new edition published in the original French in that year from the editor Dumas for use by the Continental Congress. The law of nature on which the law of nations was based from the beginning man’s recorded history is quite clear on the meaning of natural born citizen. If one is born in the country to two citizens of the country, then “naturally” you are a citizen of that country and only that country and know law of man is required to clarify it.

See this excellent Euler Diagram and article to explain with logic what the law of nature conveys at birth and which no law can retroactively confer or change.

To Chief Justice Fuller in Fourteen Diamond Rings (1901), Filipinos born in what was then the U.S. territory of the Philippine Islands during the American territorial period (1898-1946) were persons born owing allegiance to the United States:

“The Philippines thereby ceased, in the language of the treaty [of Paris] to be foreign country. They came under the complete and absolute sovereignty and dominion of the United States, and so became territory of the United States over which civil government could be established. The result was the same although there was no stipulation that the native inhabitants should be incorporated into the body politic, and none securing to them the right to choose their nationality. Their allegiance became due to the United States, and they became entitled to its protection”

Since these Filipinos were NEVER recognized as citizens of the United States, a country they were mandated to owe allegiance to at the moment of birth, the question is:

Were Filipinos born in the U.S. territory of the Philippine Islands during the American territorial period STATELESS AT BIRTH?

In other words, since the Republic of the Philippine came into existence only in 1946 (after all of them had already been born), what was their country of birth?

This is an extremely interesting concept — being Stateless at birth. Thank you for pointing out an intriguing area of discussion. I need to think on this; I’ve never really thought of this possibility before. Thanks again Domingo. I’ll try to respond again when I have clearly worked this out in my own logical mind.

It is for this reason that Filipinos born during the American territorial period who apply for naturalization as citizens of the United States obviously commit PERJURY by declaring that their “Country of Birth” is the Philippines—a “country” that did not officially exist as a “country” at the time they were born.

These unwanted Filipinos, however, have no choice, since they were abandoned, unrecognized by their “country of birth.” To belatedly solve this problem, the US Congress minted an oxymoron status (after they were all born)–NON-CITIZEN NATIONALS OF THE UNITED STATES–but still owing allegiance solely to the United States and to no other at birth.

To be consistent with your (and Vatel’s) definition of “natural-born,” a person must be born of parents (both father and mother) who are also “natural-born” too; for, if both or either one were not; then, how can the status of “natural-born” be transmitted to their children? However, being a nation of immigrants (Indians are the only aboriginals), who will qualify to claim the status of “natural-born” citizen of the United States as herein defined (i.e. born of parents who are likewise “natural-born”)?

Your argument is completely flawed. The parents only need be citizens of the country to produce a natural born citizen. As this chapter discussed it is all about allegiance. If the parents are citizens, even if they were naturalized citizens in which case they would have sworn an oath of allegiance to the U.S., they would no longer contain allegiance elsewhere and would therefore be able to produce a child with unity at birth for one nation. The point is the child has at birth sole allegiance to one and only one nation. That would occur if the both parents were naturalized citizens, native born citizens or natural born citizens.

So, it’s the allegiance of both parents at the time of their child’s birth that determines the status of a “natural-born” citizen of the United States. How about those “born in the United States” of alien parents owing allegiance to a foreign country, can they claim to be “natural-born” too?

According to de Vattel’s definition, that is correct the citizenship of the parents plays a role in the natural born citizen status of the child. Alien parents would hold allegiance elsewhere and that allegiance would be passed on to their children. Example, I have a good friend who’s parents legally migrated from Mexico to the United States in 1965; however, they were still Mexican citizens at that time. When my friend was born on U.S. soil a few years later, she was born with Mexican citizenship as well as 14th Amendment U.S. citizenship. She was born a dual citizen. Several years later her parents naturalized and took their oath to the U.S. and became U.S. citizens. Under de Vattel’s definition, my friend would not be a natural born citizen even though she would be a native U.S. citizen and 14th Amendment U.S. citizen.

So, under Vattel’s concept, there are three categories of citizens of the United States: (1) citizens at birth born in the United States of alien parents; (2) natural-born citizens born in the United States of citizen parents; (c) naturalized citizens.

Are persons born of citizen parents out of the limits and jurisdiction of the United States “natural-born” citizens too?

Of course, insofar as “allegiance” is concerned, there’s the fourth category (if you can call it that): non-citizen national of the United States (born owing allegiance to the United States)

It would seem that “birth within the allegiance” may not be the determinant to citizenship of the United States after all. But in U.S. v Rhodes (cited in U.S. v. Wong Kim Ark):

“All persons born in the allegiance of the United States are natural born citizens.”

This definition, of course, merely reiterates what was proclaimed in Calvin’s Case (1608), also cited in Wong Kim Ark:

“It is neither the climate nor the soil but allegiance and obedience that make the subject born.”

[Editor] I ran out of embedded links, so I will place my response below:

I am not comfortable speaking for de Vattel, but he certainly places emphasis on both the parents’ citizenship and the soil on which you are born. Let’s look at the full quote again from Chapter 2:

The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.[iii]

With respect to your comment above, I think the salient portion of the de Vattel quote is: “As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation…” I take this to mean that second generation U.S. citizens are good for the country because they promote the culture and traditions of the nation. So in de Vattel’s view it is more important to be born to U.S. citizen parents although to be a natural born citizen you must also be born on U.S. soil as well.

In fairness to de Vattel, though, there are some that argue that only the parents’ citizenship would matter in certain circumstances under de Vattel’s definition. Mario Apuzzo argues this on his blog when he states:

“Vattel explained that if a child was born “in the armies of the state,” that child was “reputed born in the country; for a citizen, who is absent with his family on the service of the state, but still dependent on it, and subject to its jurisdiction, cannot be considered as having quitted its territory.” Vattel, Sec. 217. Since this child would have been born in the foreign “armies of the state,” he would normally not be granted citizenship in the country in which he was physically born.”

So under Apuzzo’s understanding of de Vattel, someone with the birth circumstances of John McCain would be considered a natural born citizen.

Can a person in line of succession for the Presidency of the United States who is not a natural born citizen of the United States succeed to the Presidency according to the Succession Act of 1947, and amendments?

I am not a lawyer nor a Constitutional scholar, but I would assume under the Succession Act that anyone in line that does not meet the Constitutional requirements his or her place in order of succession would be skipped.

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